Search warrant needed to review contents of cell phone seized as incident to arrest

R. v. Manley, 2011 ONCA 128 hold, albeit tentatively, that police ought not to review the contents of a cell phone seized on arrest without obtaining a warrant to search:

[35] The appellant submits that even if the police had grounds to believe that the cell phone had been stolen, they had no power to search the saved data in the cell phone without a warrant. In the leading Ontario case, R. v. Polius (2009), 196 C.R.R. (2d) 288 (Ont. S.C.), Trafford J. rejected the Crown’s argument that the power to lawfully seize a cell phone incidental to arrest includes a warrantless power to examine its contents. He held that one has a reasonable expectation of privacy in the often deeply personal contents of one’s cell phone and, at para. 57, that to protect the privacy interests implicated in a manner consistent with s. 8 jurisprudence, a search incident to arrest should be limited to “a power to seize it, where there is a reasonable basis to believe it may contain evidence of the crime, for the purpose of preserving its evidentiary value, pending a search of its content under a search warrant.” Polius was followed in R. v. Finnikin, [2009] O.J. No. 6016 (S.C.); R. v. O. (T.), 2010 ONCJ 334; and R. v. McBean, 2011 ONSC 8. Compare R. v. Giles, 2007 BCSC 1147;R. v. Otchere-Badu, 2010 ONSC 1059.

[36] The Crown responds with two submissions, the first narrow and confined to the facts of this case and the second broad and general. The Crown’s first submission is that in the circumstances of this case, the police were entitled to conduct a cursory warrantless inspection of the cell phone including its stored data to ascertain ownership of the phone. Second, the Crown submits that Polius was wrongly decided and that the police are entitled to conduct warrantless searches of cell phones seized as an incident to a lawful arrest.

[37] I agree with the Crown’s first submission. The appellant was arrested for break and enter and, when arrested, he was in possession of a number of unusual and suspicious items. The police had information from a confidential informant that in the past the appellant had stolen cell phones. Ownership of the cell phone was relevant to the offences for which the appellant had been arrested. In my view, this combination of circumstances provided the police with a lawful basis for conducting a cursory search of the cell phone to determine whether it had been stolen. As I can see no basis to interfere with trial judge’s factual finding that the first officer came upon the photograph while conducting a search of the cell phone to determine its ownership, I would uphold the trial judge’s determination that the cursory search of the cell phone was lawful.

[38] I wish to emphasize, however that my decision rests on two points. First, that the police had a legitimate interest in determining whether the cell phone had been stolen and second, that the police did not search the stored data in the cell phone for any other purpose. According to the testimony on the voir dire that was accepted by the trial judge, the cell phone’s telephone number was identified after the discovery of the photograph. A telephone number is sufficient information from which the ownership of a phone may be determined. Had the examination of the phone continued after the telephone number had been found, this would be a different case. If the telephone number had been written or inscribed on the exterior of the cell phone or visible or easily found when the phone was opened, any further search obviously could not be justified as a cursory inspection to determine ownership. Likewise, in a case where there was no reason to doubt the arrested party’s ownership of the phone and no link between ownership and the offence for which the person was arrested, a search of the stored data in the phone could not be justified on the basis that the police were simply trying to determine who owned the phone.

[39] In the light of my conclusion with respect to the Crown’s first submission, it is not necessary for me to deal with the second. Accordingly, it is neither necessary nor desirable to attempt to provide a comprehensive definition of the powers of the police to search the stored data in cell phones seized upon arrest. However, I would observe it is apparent that the traditional rules defining the powers of the police to conduct a search incident to arrest have to be interpreted and applied in a manner that takes into account the facts of modern technology. While I would not apply Polius in the particular circumstances of this case, I am far from persuaded that Polius was wrongly decided or that it ought to be overruled. Cell phones and other similar handheld communication devices in common use have the capacity to store vast amounts of highly sensitive personal, private and confidential information – all manner of private voice, text and e-mail communications, detailed personal contact lists, agendas, diaries and personal photographs. An open-ended power to search without a warrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious and significant invasion of the Charter-protected privacy interests of arrested persons. If the police have reasonable grounds to believe that the search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrant authorizing the search.